Morris v. Ingersol Cutting Tool Inc., 2103 IL App (2d) 120760 (Birkett)
Facts: Plaintiff was unloading a truck at defendant loading bay when he backed up and fell as a result of a defect in the pavement that was 2.5 feet long, 1 foot wide and 1.5 inches deep according to the plaintiff’s expert report. The trial court ruled that the plaintiff fell as result of the height deviation and since the defect was only 1.5 inches in height differential it was de minimis and not actionable. Plaintiff appeals.
Holding: The 1 1/2 inch defect in the surface area of the loading bay was de minims and not actionable in the absence of any aggravating factors that would be sufficient to negate the de minims rule.
Filed in Trial Book Under: Premises Liability – Trip and Fall, Deminimis
Commentary: It seems to me like the plaintiff’s attorney did everything he could to try to get this case to a jury. He got some good admissions from the defendant relating to weekly safety inspections and that 1.5 inch deviations were tripping hazards, he hired an expert to evaluate the defect and provide testimony regarding its danger and he seemed to make very good arguments regarding all of the aggravating circumstances that were present at this location in order for the trial court and appellate court to look past a knee-jerk application of the de minimus standard to a trip and fall occurrence. Despite all of these efforts, the appellate court seemed pretty determined to uphold the ruling and find there is no duty to protect workers on loading docks. Although this opinion isn’t particularly surprising, it’s an unfortunate result in my opinion. One of the major points that the court makes in the opinion is basically that not many people use this particular area, unlike cases where liability was found because the location was a point of ingress and egress for pedestrians. In this case, because the loading bay is not used by many people, a defect is somehow less dangerous for the people that will use the area. Along those lines, the opinion specifically states that the loading bay is designed primarily for vehicular travel and not pedestrian travel. This approach seems to ignore that the term loading is the operative and important word in “loading bay.” Respectfully, the merchandise doesn’t move itself from off the back of the trucks. People do that, namely truck drivers and other laborers. And when they do, they are often distracted and focused on carrying large cumbersome loads in awkward positions. In short, they need to have a work area that is safe and free from unreasonable tripping hazards. Given the facts that are developed in this case, it would seem to me that a large depression at a location where trucks are likely to be unloading is not a difficult problem to resolve and should be encouraged. This opinion does absolutely nothing for promoting workplace safety and seems to take a very flawed economic cost-benefit analysis that is designed to be applied to municipalities that may have literally hundreds of thousands of miles sidewalks and roadways to conclude that improving a 65 foot loading bay at a commercial building that invites trucks to load and unload on its property is simply too much of an economic burden for any business to take. The only upside to this case is that it will be yet another anecdote to use with clients during the case intake process to explain how difficult it is these days to prevail in a concrete deviation trip and fall case.
Ballog v. City of Chicago, 1-12-2429 (Garcia)
Facts: Plaintiff fell and fractured her ankle when she tripped on a defect in the crosswalk. Prior to the occurrence, the City of Chicago had undergone improvements of the sidewalks and curbs in the area of the incident. At the crosswalk where plaintiff fell, there were cut-outs at the curb where the asphalt dropped approximately 2 inches and was unfilled at the time of the occurrence. The condition was the same on both sides of the street that Plaintiff was crossing, so that the evidence revealed that plaintiff was able to safely negotiate a similar defect as she left the curb for the crosswalk, but when she arrived to other side of the street she did not notice the cut-out and fell. The defendant moved for summary judgment on the basis that the defect was open and obvious and the trial court agreed and granted summary judgment in favor of the City. The Plaintiff appealed arguing that (1) the issue of whether the defect was open and obvious is a question of fact and (2) that the deliberate encounter exception applied.
Holding: The condition in the crosswalk was an open and obvious danger such that the defendant owed no duty to plaintiff, and the deliberate encounter exception was inapplicable to the facts.
Filed in Trial Book Under: Premises Liability; Open & Obvious; Deliberate Encounter; Sidewalks
Commentary: The fact that the crosswalk had an identical cut-out that plaintiff successfully negotiated was determinative to the outcome here. The opinion specifically states that “had the plaintiff exercised ordinary care for her own safety, as she did in traversing the very same gap in the street surface as she began to cross, she would have been able to safely traverse the gap on the opposite side of the crosswalk. The existence of the gap on both corners forecloses any suggestion that the gap was unreasonably dangerous to demand additional precautions by the City.” Moreover, the plaintiff’s attempt to use the deliberate encounter exception was quickly dismissed by the appellate court. The plaintiff seemed to testify that she was unaware of the defect that caused her to fall, whereas the rationale for the deliberate encounter exception is typically that the plaintiff knew of the defect but for some reason was required to deliberately encounter it anyway. In this case, the court determined that the encounter was not deliberate and therefore not applicable to the case. It seems to flow logically that in order for a plaintiff to deliberately encounter a danger, they must know that the danger is present. That wasn’t the case here, so the exception was not available.
Barber v. G.J. Partners, Inc. – 4-11-0992 (Turner)
Facts: Plaintiff was injured in the parking lot of a convenience store. The defendant would plow the parking lot and put down salt. Near the entrance there were two metal plates that were not level with the ground and therefore when the plows would go over the lot they would fill and pack the plates with snow. After the plows were done, employees would try to scrape the plates with a shovel and put salt or chemicals down, however, the salt would have little or no effect when temperatures dropped below 28 degrees. The defendant admitted that the plates were slick in the winter and that other customers had complained and that they were “troublesome” as they “were always covered in ice and snow and very slippery.” On the date of the occurrence, the Plaintiff exited her truck and stepped down on one of the metal plates and slipped and broke her foot. Prior to trial, the defendant moved for summary judgment which was denied. At trial, the defendant moved for a directed verdict which was denied. The jury found in favor of the Plaintiff and the Defendant appealed. The Appellate court found in favor of the Defendant and reversed the trial court, holding that the condition was a natural accumulation of ice and therefore not actionable.
Holding: The accumulation of snow on the metal plates was a natural accumulation and the mere sprinkling of salt, causing the ice to melt, although it may later refreeze, does not aggravate a natural accumulation so as to form a basis for liability on the part of the property owner.
Filed in Trial Book Under: Premises Liability – Natural Accumulation ; Snow and Ice
Commentary: This is yet another case in the roller coaster ride that we’ve been seeing with snow and ice cases and the court’s interpretation of the natural accumulation rule. This is a pretty narrow case from a factual standpoint in that the metal plates were approximately 2 inches lower than the rest of the lot and created and area the original snowfall was being packed down by snow plowing efforts rather than removed. The employees made efforts to eliminate the risk by salting and shoveling, but due to temperature variations and the continued presence of vehicles going over the plates throughout the winter it seems as if it was difficult task. The court relies upon the rule that “the mere sprinkling of salt, causing the ice to melt, although it may later refreeze, does not aggravate a natural condition so as to form a basis for liability against the property owner.” In short, they felt that the underlying snow on the plates was natural and the fact that efforts to plow the lot changed the composition of the snow on top of the recessed metal plates, it does not render that snow an unnatural accumulation. The appellate court further discusses the policy implications of these cases and concludes, correctly, that we need to have the law develop in a way that encourages property owners to make efforts to remove snow, not to create an incentive for them to do nothing, and it is unrealistic to expect the efforts to be perfect. This seems to be a unique set of facts and it’s too bad that the plaintiff lost her verdict in the appellate court, but the logic and rationale of the court here seems to make sense.
Ishoo v. General Growth Properties, Inc., 2012 IL App (1st) 110919 (Garcia)
Facts: Plaintiff fell at Northbrook Mall when she slipped on a liquid substance that was on the floor near the escalator. Plaintiff testified that the substance “smelled like solution, water, solution, cleaning solution, Windex” and that although she dod not know where the liquid substance came from the janitorial services workers are “constantly cleaning the escalators and they’re constantly spraying Windex and squeegeeing it.” The defendant presented testimony that a post fall inspection did not reveal any liquid substance on the ground where plaintiff fell and that the escalators are not cleaned until 9:00 p.m. when the mall is closed. Defendants filed motions for summary judgment arguing that plaintiff’s claim that she fell on a liquid substance was nothing more than speculation and that they did not have actual or constructive knowledge of any liquid spill prior to the fall. The trial court granted the motion for summary judgment and plaintiff appeals.
Holding: Summary judgment against plaintiff was proper because there were no facts to support a finding of actual or constructive notice by the defendants of the spilled liquid that caused plaintiff’s slip and fall injury
Filed in Trial Book Under: Premises Liability – Spills; Constructive Notice
Commentary: These are notoriously difficult cases to prove. The appellate court rightly dismisses the defendants argument that the cause of the fall was speculation becasue the plaintiff clearly testifies that she fell as a result of liquid from the floor. Although the opinion states that the issue is “whether there is any evidence that directly proves, or gives rise to a reasonable inference, that the presence of liquid substance on the floor is tied to one or more of the defendant”, I think that it really turns on whether the defendant knew of the presence of the liquid prior to the fall. The liquid doesn’t have to be “tied to one of the defendants”, i.e. they placed it there, in order for liability to attach. It would be enough if they actually knew of the liquid and failed to do anything about it. Therefore, I think that the appellate court misstates the law when it concludes that “actual notice can only be established by a showing that the housekeeping staff ‘squeegeed’ cleaning solution from the escalator to the floor.” Be that as it may, there was no testimony or evidence to show that any of the defendants had actual knowledge of the presence of any liquid on the floor, so the plaintiff was left with trying to establish liability through constructive knowledge. Again, there simply was not any evidence to establish how long the liquid was there so there was no way to establish constructive knowledge. This conclusion relating to lack of notice seems to be reasonable and is typical of cases involving a fall on liquid at a store or mall. No one ever seems to testify that they were aware of the condition prior to the fall, so the plaintiff always has a difficult time establishing notice.